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Post Reply: Six Kenyans Sue IEBC for Inaction on MP Recall Petitions, Alleging Violation of Voter Rights

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on August 8, 2025, 8:00 am</div><div id="pl-7434"  class="panel-layout" ><div id="pg-7434-0"  class="panel-grid panel-no-style" ><div id="pgc-7434-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-7434-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<p dir="ltr" data-pm-slice="1 1 []">A group of six Kenyans has filed a lawsuit against the Independent Electoral and Boundaries Commission (IEBC) in the High Court in Nairobi, accusing the electoral body of failing to process petitions to recall Members of Parliament (MPs). The petitioners, Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti, and Christine Kanana Kithinji, argue that the IEBC's inaction violates their constitutional rights under Article 104 of the Kenyan Constitution, which grants voters the power to recall elected representatives. The lawsuit also names the Attorney General and the Speakers of the National Assembly and Senate as respondents, highlighting a broader systemic failure to uphold voter sovereignty.</p>
<p dir="ltr">The petitioners contend that the IEBC's refusal to act on recall petitions undermines the democratic principle of accountability, effectively rendering Article 104 ineffective. They argue that this inaction creates an artificial legal gap that protects underperforming or unpopular MPs from democratic oversight. The group is seeking a court order to compel the IEBC to process recall petitions and a declaration that the right to recall under Article 104 is self-executing, meaning it does not require additional legislation to be enforced. Additionally, they are requesting an order of mandamus to direct Parliament to enact legislation within 90 days to operationalize the recall process, as mandated by Article 104(2).</p>
<p dir="ltr">The lawsuit stems from a longstanding legal void following a 2017 High Court ruling in the case of Katiba Institute and Transform Empowerment for Action Initiative v Attorney General, which struck down sections of the Elections Act 2011 (Sections 45 to 48) as unconstitutional and discriminatory. These sections had previously outlined the grounds and procedures for recalling MPs, including requirements for filing petitions in the High Court and restrictions on who could initiate recalls. The court found these provisions overly restrictive, but Parliament has since failed to enact new legislation to address the gap, leaving the IEBC without a clear framework to process recall petitions for MPs and Senators. In contrast, the recall process for Members of County Assemblies (MCAs) remains functional, as the relevant laws were amended to comply with the Constitution.</p>
<p dir="ltr">In a supporting affidavit, lead petitioner Newton Boore detailed the group's efforts to initiate a recall process against the Senator of Tharaka Nithi County, Mwenda Gataya. Boore stated that they first wrote to IEBC CEO Marjan Hussein Marjan in September 2024, requesting guidance on the recall process. At the time, Marjan responded that the commission was not fully constituted due to the absence of commissioners and lacked the legal framework to proceed. After the IEBC was reconstituted with new commissioners, including Chairperson Erastus Edung Ethekon, sworn in on July 11, 2025, the petitioners sent a follow-up letter on July 23, 2025, but received no response. Boore argued that the IEBC's continued inaction amounts to an illegal suspension of a constitutional right, as the window to recall current MPs closes in August 2026, one year before the next general election.</p>
<p dir="ltr">The petitioners assert that the IEBC has a constitutional duty under Article 88(4) to conduct referenda and elections, including recall processes, and should not use the absence of legislation as an excuse for inaction. They argue that the right to recall is a fundamental political right under Article 38, which guarantees citizens the ability to make political choices, including removing elected leaders who fail to represent their interests. The lawsuit also highlights the unequal treatment of elected officials, noting that while MCAs and governors can be recalled under existing laws, MPs and Senators are shielded by the legislative gap, despite performing similar delegated roles.</p>
<p dir="ltr">The IEBC has acknowledged receiving four recall petitions, including one targeting Nairobi Woman Representative Esther Passaris, filed by activists Shakira Wafula, Mavin Mabonga, Dominic Omondi, and Sichei Soet on July 28, 2025. The petition against Passaris cites her alleged failure to represent Nairobi residents, particularly women, and her silence on issues such as police brutality and controversial protest bills. Other MPs named in recall petitions include National Assembly Majority Leader Kimani Ichung'wah and Meru North MP Rahim Dawood, with reasons ranging from supporting the now-withdrawn Finance Bill 2024 to failing to address constituent concerns. However, the IEBC maintains that it cannot process these petitions due to the lack of a legal framework, a position that has drawn criticism from civic groups and legal experts.</p>
<p dir="ltr">The Law Society of Kenya (LSK) has accused Parliament of deliberately failing to enact the necessary legislation to protect MPs from accountability. LSK President Faith Odhiambo emphasized that this inaction undermines Article 1 of the Constitution, which vests sovereignty in the people. The LSK has also raised concerns about the Elections (Amendment) Bill, Senate Bill No. 29 of 2024, currently under consideration in the National Assembly. The bill aims to align the Elections Act with the 2017 court ruling by removing invalidated sections, but critics argue that it may further narrow the grounds for recalling MPs, potentially weakening the process.</p>
<p dir="ltr">Legal scholars and civic groups have argued that Article 104 is self-executing and does not require enabling legislation to be enforced, citing precedents such as CREAW &amp; Others v Attorney General (2013) and Judges and Magistrates Vetting Board v Kenya Human Rights Commission (2014). These rulings affirm that constitutional rights, particularly those related to political participation, remain enforceable even in the absence of specific laws. The petitioners echo this view, asserting that the IEBC should develop administrative guidelines to facilitate recalls, as it does for other constitutional mandates like public participation under Article 10.</p>
<p dir="ltr">Public frustration with the IEBC's stance is growing, particularly among younger Kenyans who feel disconnected from the political process. The recall provision was a cornerstone of the 2010 Constitution, designed to empower citizens to hold elected leaders accountable and break the culture of impunity. Critics argue that the IEBC's reliance on the legislative gap reflects a bureaucratic reluctance to embrace the transformative vision of the Constitution. Some observers, including Esther Mungai, have expressed distrust in the IEBC, accusing it of indirectly protecting MPs from public scrutiny.</p>
<p dir="ltr">The lawsuit also raises broader concerns about the IEBC's credibility as Kenya prepares for the 2027 General Election. The commission has faced accusations of bias and political influence in its reconstitution process, with lobby groups like Operation Linda Jamii questioning the independence of its leadership. The IEBC has outlined plans to restore public trust through voter education, electoral reforms, and preparations for 23 by-elections, but the recall controversy threatens to undermine these efforts.</p>
<p dir="ltr">As the High Court prepares to hear the case, the petitioners are hopeful that a favorable ruling will compel the IEBC to act on recall petitions and force Parliament to fulfill its constitutional duty. The outcome could set a significant precedent for democratic accountability in Kenya, determining whether citizens can fully exercise their right to recall elected leaders. For now, the petitioners and many Kenyans await a resolution to this legal and political impasse, with the clock ticking toward the August 2026 deadline for recalls in the current parliamentary term.</p>
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